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Federal regulators have signed off on Mountain Valley Pipeline developers’ plans to change their method for crossing 183 waterbodies and wetlands.

But recent federal court proceedings indicate key gaps in the pipeline’s path to completion likely won’t be filled anytime soon, prolonging a state of legal limbo for the 303-mile project originally slated to be in service over three years ago.

The Federal Energy Regulatory Commission on Friday approved Mountain Valley Pipeline LLC’s request to change crossing methods at 120 locations, allowing the joint venture that owns the 42-inch-diameter pipeline to tunnel under waterbodies, as opposed to an open-cut method, as initially authorized.

But legal roadblocks still stand in the way.

The commission noted that decisions issued earlier this year by the 4th U.S. Circuit Court of Appeals setting back the project still apply.

In January, the court invalidated federal approval for the pipeline to cross the Jefferson National Forest. The following month, the court struck down a conclusion by the U.S. Fish and Wildlife Service that constructing the pipeline is unlikely to jeopardize endangered species. That move prompted the U.S. Army Corps of Engineers to commit to withholding a key water discharging permit until there is a valid conclusion on the project’s effects on threatened species.

Nevertheless, pipeline developers and supporters welcomed the FERC’s decision, which found that trenchless crossings would reduce effects on stream banks.

“This is another important step forward in MVP’s project completion and, as a critical infrastructure project, is essential for our nation’s energy security, reliability, and ability to transition to a lower-carbon future,” Natalie Cox, spokeswoman of Equitrans Midstream Corp., the Canonsburg, Pennsylvania-based lead developer of the pipeline, said in an email.

Sen. Joe Manchin, D-W.Va., called the commission’s order “the correct decision” and the pipeline “a strategically important project for the energy and national security of our country” in a statement.

The commission’s approval Friday followed agency staff’s August 2021 environmental assessment concluding that the effects from changing to a trenchless method from an open-cut dry crossing one would be temporary, short-term and “not significant.”

Mountain Valley Pipeline has proposed 38 trenchless water crossings covering a combined 5,682 feet in West Virginia: 16 in Nicholas County; seven in Summers and Webster counties; three in Greenbrier County; two in Lewis and Monroe counties; and one in Wetzel County.

Environmentalists criticized the commission’s decision for green-lighting the change in crossing methods while other permits remain outstanding.

“Federal regulators shouldn’t have authorized MVP to bore under our streams and wetlands, even conditionally, while it is still unclear whether the company will ever get the lawful permits necessary to ever finish the project,” Sierra Club senior campaigner Caroline Hansley said in a statement. “Moreover, FERC should have examined more closely the pipeline’s effects on our communities and our climate.”

A panel of federal judges signaled potential further legal trouble for the project Thursday in their questioning of an attorney for the FERC defending the agency’s October 2020 decision to grant pipeline developers until October 2022 to finish constructing the pipeline and place it into service. The commission’s October 2017 order authorizing the project required it be made available for service within three years.

Seven environmental groups, including the West Virginia Rivers Coalition, the Indian Creek Watershed Association and the Chesapeake Climate Action Network, have asked the court to reverse the decision.

U.S. Court of Appeals for the District of Columbia Circuit judges questioned last week why the FERC didn’t more closely review environmental effects of the pipeline following sedimentation issues that prompted fines from West Virginia and Virginia state environmental regulators prior to the 2020 two-year extension and lifting of a partial stop-work order.

Attorneys for the commission and Mountain Valley Pipeline attributed worsened sedimentation issues to what they said was unusually high rainfall in 2018.

“[T]his wasn’t like the times of Noah,” Judge Patricia A. Millett said. “Just saying there was a lot of rain in 2018 doesn’t seem responsive to me.”

Commission attorney Matthew Estes argued that a drop in state-assessed violations in West Virginia and Virginia since 2020 validated the agency’s approach.

The West Virginia Department of Environmental Protection released a consent order last year requiring Mountain Valley to pay a $303,000 fine for violating permits by failing to control erosion and sediment-laden water, mostly for violations documented in 2019. That penalty followed a $266,000 fine from the state in 2019 for similar erosion and water contamination issues.

The Virginia Department of Environmental Quality fined Mountain Valley $2.15 million in 2019, resolving a lawsuit the department and Virginia Attorney General Mark Herring had filed alleging the company violated a previously issued water quality certification by not controlling sediment and stormwater runoff.

Millett argued that the West Virginia and Virginia sedimentation-related penalties constituted “profoundly changed circumstances” that showed the commission should have done more to review the project’s environmental impact.

The trenchless crossings approved by the commission would require excavation of bore pits on each side, according to the commission staff environmental assessment from August. Individual bore pits may be excavated to depths as shallow as 3 feet or as deep as 49 feet, depending in part on the topography next to the bore pit.

Thursday’s oral argument followed 4th Circuit Court denials of motions by Mountain Valley in recent weeks for rehearings in cases in which the court invalidated Jefferson National Forest crossing approval and struck down the Fish and Wildlife Service conclusion that building the pipeline is unlikely to jeopardize endangered species.

Cox declined comment on the court’s rehearing denials.

Equitrans has resolved to finish the pipeline, despite mounting costs amid the many legal challenges facing the project.

Announced in 2014, the pipeline originally was scheduled for completion by the end of 2018 at a cost of $3.5 billion. But its cost has now exceeded $6 billion, with legal challenges stalling the project.

Equitrans said in February that it no longer is targeting a summer 2022 in-service date for the pipeline and took a $1.9 billion impairment charge in the fourth quarter of fiscal year 2021 because of its investment in the project.

“The evidence is clear — every setback MVP faces, every permit vacated, and every investor shying away from the project confirms what we have believed since the project’s inception: This unnecessary, fracked gas pipeline has no place in our communities,” Hansley said. “It’s time MVP sees the writing on the wall and ends this beleaguered project.”

The pipeline is projected to provide up to 2 billion cubic feet per day of natural gas from the Marcellus and Utica shale formations to markets in the Mid-Atlantic and Southeastern regions of the United States. The pipeline route crosses Wetzel, Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Greenbrier, Fayette, Summers and Monroe counties in West Virginia.

Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or mtony@hdmediallc

.com. Follow @Mike__Tony on Twitter.

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